Wisconsin Legislature: Ch. DWD 226 TOC

DWD 226.001DWD 226.001 Purpose. This chapter implements the provisions of s. 103.11, Stats., providing for bone marrow and organ donor leave for employees in certain cases and prohibiting certain practices by establishing interpretations of the provisions of that section to assist in its implementation.

DWD 226.001 HistoryHistory: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.

DWD 226.01DWD 226.01 Definitions and scope.

DWD 226.01(1)(1) When used in this chapter or in s. 103.11, Stats.:

DWD 226.01(1)(a)(a) “12-month period,” as used in s. 103.11 (4), Stats., means a calendar year commencing at 12:01 a.m. on January 1 and ending at midnight on December 31 each year.

DWD 226.01 NoteNote: Section 103.11 (4), Stats., specifies requirements for taking bone marrow and organ donation leave and limits the leave to no more than 6 weeks in a 12-month period.

DWD 226.01(1)(b)(b) “12-month period,” as used in s. 103.11 (9) (c) 2., Stats., means a period of 365 consecutive days commencing with the date the first payment is required by an employer to be paid by an employee under s. 103.11 (9) (c), Stats.

DWD 226.01 NoteNote: Section 103.11 (9) (b) and (c), Stats., applies to employers who maintain group health insurance coverage for employees. If an employee takes bone marrow and organ donation leave, then, during the period of the leave, s. 103.11 (9) (b), Stats., requires the employer to maintain the coverage under the same conditions that applied immediately before the leave began. Section 103.11 (9) (c) 1., Stats., allows the employer to require the employee to have in escrow with the employer an amount equal to the entire premium or similar expense for 8 weeks of the employee’s group health insurance coverage. If an employer requires an employee to have that amount in escrow, s. 103.11 (9) (c) 2., Stats., allows the employee to pay the amount to the employer in equal installments at regular intervals over at least a 12-month period.

DWD 226.01(1)(c)(c) “Administrative law judge” means the examiner appointed to conduct hearings under s. 103.11 (12), Stats.

DWD 226.01(1)(d)(d) “Complainant” means the person who files a complaint alleging a violation under s. 103.11, Stats.

DWD 226.01(1)(e)(e) “Day” means a calendar day. When used in time computations, “day” means a calendar day, except that if the last day of the time period is a Saturday, Sunday, or legal holiday, the last day shall be the next business day.

DWD 226.01(1)(f)(f) “Department” means the Wisconsin department of workforce development.

DWD 226.01(1)(g)(g) “Employee” means an individual employed in this state by an employer.

DWD 226.01(1)(h)(h) “Employer” means a person engaging in any activity, enterprise, or business in this state employing at least 50 individuals on a permanent basis, and includes the state and any office, department, independent agency, authority, institution, association, society, or other body in state government created or authorized to be created by the constitution or any law, including the legislature and the courts.

DWD 226.01(1)(i)(i) “Filing” means the physical or electronic receipt of a document by the department, including receipt by hand delivery, U.S. mail, facsimile, email, or receipt on the department’s website.

DWD 226.01(1)(j)(j) “Group health insurance coverage” means the entire health insurance package offered by an employer including, medical, dental, or vision insurance.

DWD 226.01(1)(k)(k) “Probable cause” means a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person in the belief that one or more actions prohibited by s. 103.11 (11), Stats., probably has been or is being committed.

DWD 226.01(1)(L)(L) “Respondent” means the person or agency alleged to have committed one or more actions prohibited by s. 103.11 (11), Stats.

DWD 226.01(1)(m)(m) “Week” as used in s. 103.11 (3) (b), Stats., means 7 consecutive days.

DWD 226.01(2)(2) An employer shall be deemed to be “employing at least 50 individuals on a permanent basis” within the meaning of s. 103.11 (1) (c), Stats., if, during at least 6 of the preceding 12 calendar months, with partial months to count as full months, the employer, according to its usual personnel recordkeeping practices, actually treated at least 50 individuals as being permanent employees as to the activities, enterprises, or businesses of that employer.

DWD 226.01(3)(3) An employee shall be deemed to have “been employed by the same employer for more than 52 consecutive weeks” within the meaning of s. 103.11 (3) (b), Stats., if the person has actually been treated by the employer, according to the usual personnel recordkeeping practices of the employer, as an employee during each of those 52 weeks, irrespective of the number of hours worked in those weeks and notwithstanding that the employee may have, in that 52-week period, been off work for one or more weeks on vacation leave, sick leave, or other leave, or on layoff, if such vacation leave, sick leave, or other leave was granted to the employee by the employer according to a regular practice of granting such leaves, or the layoff was initiated by the employer, and if the employer allowed the employee to return to work at the end of the leave or layoff without having to reapply for employment.

DWD 226.01(4)(4) Under s. 103.11 (3) (b), Stats., a person shall be deemed to have “worked for the employer for at least 1,000 hours during the preceding 52-week period,” if the number of hours actually worked in that period plus the number of hours for which the employee was paid pursuant to a regular policy of paid vacation leave, sick leave, or other paid leave equals at least 1,000 hours.

DWD 226.01(5)(5) Where an employer’s policy with respect to leave for the purpose of serving as a bone marrow or organ donor is to provide the same leave as granted in s. 103.11 (4), Stats., the posting of a statement to that effect together with a copy of s. 103.11, Stats., in the manner prescribed by s. 103.11 (14) (b), Stats., shall satisfy the requirements of s. 103.11 (14) (b), Stats.

DWD 226.01(6)(6) To the extent that an employer grants leave to an employee relating to the employee’s service as a bone marrow or organ donor in a manner which is no more restrictive than the leave available to that employee under s. 103.11 (4), Stats., the leave granted by the employer shall be deemed to be leave available to that employee under s. 103.11 (4), Stats.

DWD 226.01 HistoryHistory: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22; correction in (1) (L) made under s. 35.17, Stats., Register June 2022 No. 798.

DWD 226.02DWD 226.02 When and how leave taken.

DWD 226.02(1)(1) The leave allowed under s. 103.11, Stats., may be taken in noncontinuous increments. An employee may schedule and take partial absence leave in actual increments of less than a full workday if the employer allows any other leave to be taken in increments of less than a full workday. The duration of the shortest increment available to the employee under s. 103.11, Stats., shall be equal to the shortest increment the employer allows to be taken by that employee for any other nonemergency leave. Such partial leave must be necessary for the employee to undergo the bone marrow or organ donation procedure and to recover from it.

DWD 226.02(2)(2) For partial leave purposes, a “week” means 5 days of leave which would otherwise be workdays for the requesting employee.

DWD 226.02(3)(3)

DWD 226.02(3)(a)(a) An employee shall be deemed to have scheduled partial absence that does not “unduly disrupt the employer’s operations” within the meaning of s. 103.11 (6) (a), Stats., if all of the following apply:

DWD 226.02(3)(a)1.1. The employee provides the employer with notice of the employee’s proposed schedule of partial absence which is at least as much notice as the shortest notice that employee is required to give the employer for the taking of any other nonemergency or nonmedical leave.

DWD 226.02(3)(a)2.2. The schedule under subd. 1. is sufficiently definite for the employer to be able to schedule replacement employees, to the extent replacement employees are required, to cover for the absences.

DWD 226.02(3)(b)(b) If an employer has a written policy which requires notice of scheduled partial absences to be in writing, if this policy governs all employees of the employer within this state, and if the employee has been made aware of this policy, the employee shall advise the employer under this subsection in writing.